Brooks v. Commissioner of Social Security Administration

Filing 20

REPORT AND RECOMMENDATION re 1 Complaint - Social Security, filed by John Preston Brooks, II. The Court recommends the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and the case be REMANDED to the Commissioner for further administrative action. Objections to R&R due by 5/11/2017 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. Signed by Magistrate Judge Jacquelyn D Austin on 4/26/2017. (abuc)

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION

John Preston Brooks, II,

)
)
Plaintiff,
)
)
)
vs.
)
)
Nancy A. Berryhill,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

Civil Action No. 8:16-cv-01229-MGL-JDA

REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE

This matter is before the Court for a Report and Recommendation pursuant to Local
Civil Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B).1
Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final
decision of the Commissioner of Social Security (“the Commissioner”), denying Plaintiff’s
claim for disability insurance benefits (“DIB”). For the reasons set forth below, it is
recommended that the decision of the Commissioner be reversed and remanded for
administrative action consistent with this recommendation, pursuant to sentence four of 42
U.S.C. § 405(g).
PROCEDURAL HISTORY
On September 23, 2014, Plaintiff protectively filed an application for DIB, alleging an
onset of disability date of February 15, 2010. [R. 215–16.] The claim was denied initially and

1

A Report and Recommendation is being filed in this case, in which one or both parties
declined to consent to disposition by a magistrate judge.

upon reconsideration. [R.94–143]. Thereafter, Plaintiff filed a written request for hearing and,
on January 14, 2016, appeared with an attorney and testified at a hearing before
Administrative Law Judge (“ALJ”) Tammy Georgian. [R. 35–77.]
On February 10, 2016, the ALJ issued a decision finding Plaintiff not disabled from
February 15, 2010, through the date of the decision.2 [R. 17–30.] The ALJ noted that Plaintiff
had filed a prior application for DIB benefits on February 22, 2012, alleging disability since
December 1, 2010, and that his application was denied initially and upon reconsideration; that
the ALJ had issued a decision on March 18, 2014, finding him not disabled and no request
for review of that decision was made; and that, consequently,

the decision of the

Commissioner on the issue of the claimant's disability status through March 18, 2014, is final.
[R. 17.]
At Step 1, the ALJ found that Plaintiff meets the insured status requirements of the Act
through December 31, 2017, and has not engaged in substantial gainful activity since
February 15, 2010 3 . [R. 19–20, Findings 1 and 2.] At Step 2, the ALJ determined that
Plaintiff had the following severe impairments: degenerative disc disease (DDD),

2

While the ALJ’s decision indicated she found Plaintiff not disabled since February 15,
2010, she also stated that her decision “will primarily consider whether the claimant has been
disabled at any time since March 18, 2014, the date after the prior decision and a date before
his current protected filing date of September 23, 2014, in his current Title II application.” [R.
17.]
3

While the ALJ found that Plaintiff “has not engaged in substantial gainful activity since
February 15, 2010,” in the body of the decision, she also found that Plaintiff “has engaged in
SGA as defined by 20 C.F.R. §404.1574(2) and §416.972(2) since his alleged onset date
and is therefore not entitled to disability benefits from the alleged onset date through the end
of 2012.” [R. 20.] These findings appear to be in conflict. It is unclear to the Court how or if
this finding played a role in her decision. These findings should be clarified on remand.
2

osteoarthritis of the knees and shoulder, anxiety disorders, and obesity. [R. 20, Finding 3.]
The ALJ found that Plaintiff had non-severe impairments of sleep-related breathing disorders
and osteoarthritis of the neck but those did not cause more than a minimal limitation, if any,
in his ability to perform basic work activities. [R. 20.] At Step 3, the ALJ found that Plaintiff
did not have an impairment or combination of impairments that met or medically equaled the
severity of a listed impairment. [R. 21, Finding 4.]
Before addressing Step 4, the ALJ determined Plaintiff’s residual functional capacity
(“RFC”) as follows:
I find that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) except with
some limitations. Due to symptomology, the claimant is limited
to frequent sitting, standing, and walking. Due to postural
limitations, the claimant is limited to frequent balancing, stooping,
kneeling, crouching, and climbing of ramps or stairs. However,
the claimant is limited to only occasional crawling or climbing of
ladders, ropes, and scaffolds. Manipulatively, the claimant is
limited to frequent overhead reaching. Due to environmental
limitations, the claimant must avoid all exposure to very loud
noises. Additionally, the claimant must avoid concentrated
exposure to workplace hazards. Due to mental deficits, the
claimant is limited to simple, routine, and repetitive tasks
requiring only superficial interactions with coworkers or the
general public. The claimant is further limited to only occasional
changes in the work setting.
[R. 22.]
At Step 4, the ALJ found that Plaintiff was unable to perform his past relevant work as
a U.S. Army infantry soldier, corrections officer, aircraft assembler, landfill equipment
operator, concrete truck driver, or log truck driver. [R. 29, Finding 6.] At Step 5, taking into
consideration Plaintiff’s age, education, work experience, RFC, and the testimony of the

3

vocational expert (“VE”), the ALJ determined that there were jobs that existed in significant
numbers in the national economy that Plaintiff could perform. [R. 29, Finding 10.] Thus, the
ALJ found Plaintiff was not disabled from February15, 2010, through the date of the decision.
[R. 30, Finding 11.]
Plaintiff requested Appeals Council review of the ALJ’s decision, and it denied his
request for review. [R. 1–6.] Plaintiff filed this action for judicial review on April 20, 2016.
[Doc. 1.]
THE PARTIES’ POSITIONS
Plaintiff contends substantial evidence does not support the Commissioner’s decision
and errors of law require remand. Specifically, Plaintiff alleges the ALJ applied the wrong
legal standard in evaluating Plaintiff’s Department of Veterans Affairs (“VA”) disability rating
and, thus, she did not adhere to the rule articulated by the Fourth Circuit in Bird v. Comm’r,
699 F.3d 337 (4th Cir. 2012). [Doc. 12 at 3–7.] Plaintiff also contends the ALJ made extrajudicial comments, advising Plaintiff that she was putting herself in the role of “the devil’s
advocate” in the hearing, which is contrary to her duty as the decision-maker to make “a fair,
independent and impartial decision based on the law and evidence.” [Id. at 2–3.] Further,
Plaintiff challenges the ALJ’s discussion of the VE’s testimony elicited in light of examination
by Plaintiff’s counsel. [Id. at 8-9.] And, lastly, Plaintiff contends the ALJ’s credibility analysis
was flawed because the ALJ failed to give cogent reasons for finding Plaintiff’s testimony
regarding his alleged limitations not credible in light of the record evidence. [Id. at 9–10.]
The Commissioner contends the ALJ’s decision should be affirmed because
substantial evidence supports the decision especially given the deferential standard of review
4

applicable to this case. Specifically, the Commissioner alleges the ALJ appropriately
discounted the VA rating decision and offered appropriate reasons for affording it little weight,
noting that contrary to Plaintiff’s assertion, the ALJ was not required to cite to Bird or any other
case in her decision, but was only required to follow the correct procedures. [Doc. 13 at
8–15.] The Commissioner also contends that the ALJ properly relied on the VE’s testimony,
appropriately included the relevant portion of the VE’s testimony in her decision, and nothing
more was required. [Id. at 15–18.] Further, the Commissioner argues the ALJ properly
considered the factors contemplated by the regulations and applicable law for evaluating
Plaintiff’s subjective complaints and provided articulated proper reasons to support her
credibility finding. [Id. at 18–22.] The Commissioner did not address the ALJ’s extra-judicial
comments regarding her status as “devil’s advocate” in these proceedings.
STANDARD OF REVIEW
The Commissioner’s findings of fact are conclusive if supported by substantial
evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence
must do more than merely create a suspicion of the existence of a fact and must include such
relevant evidence as a reasonable person would accept as adequate to support the
conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th
Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687 (S.D.W. Va.
1963))(“Substantial evidence, it has been held, is evidence which a reasoning mind would
accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla

5

of evidence but may be somewhat less than a preponderance. If there is evidence to justify
a refusal to direct a verdict were the case before a jury, then there is ‘substantial evidence.’”).

Where conflicting evidence “allows reasonable minds to differ as to whether a claimant
is disabled, the responsibility for that decision falls on the [Commissioner] (or the
[Commissioner’s] designate, the ALJ),” not on the reviewing court. Craig v. Chater, 76 F.3d
585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir.
1991) (stating that where the Commissioner’s decision is supported by substantial evidence,
the court will affirm, even if the reviewer would have reached a contrary result as finder of fact
and even if the reviewer finds that the evidence preponderates against the Commissioner’s
decision). Thus, it is not within the province of a reviewing court to determine the weight of the
evidence, nor is it the court’s function to substitute its judgment for that of the Commissioner
so long as the decision is supported by substantial evidence. See Bird v. Comm’r, 699 F.3d
337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th
Cir. 1962).
The reviewing court will reverse the Commissioner’s decision on plenary review,
however, if the decision applies incorrect law or fails to provide the court with sufficient
reasoning to determine that the Commissioner properly applied the law. Myers v. Califano,
611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep’t of Health & Human Servs., 21
F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner’s decision “is in clear disregard
of the overwhelming weight of the evidence, Congress has empowered the courts to modify

6

or reverse the [Commissioner’s] decision ‘with or without remanding the cause for a
rehearing.’” Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. §
405(g)). Remand is unnecessary where “the record does not contain substantial evidence to
support a decision denying coverage under the correct legal standard and when reopening
the record for more evidence would serve no purpose.” Breeden v. Weinberger, 493 F.2d
1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four
or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991)
(unpublished table decision). To remand under sentence four, the reviewing court must find
either that the Commissioner’s decision is not supported by substantial evidence or that the
Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson
v. Chater, 99 F.3d 1086, 1090–91 (11th Cir. 1996) (holding remand was appropriate where
the ALJ failed to develop a full and fair record of the claimant’s residual functional capacity);
Brehem v. Harris, 621 F.2d 688, 690 (5th Cir. 1980) (holding remand was appropriate where
record was insufficient to affirm but was also insufficient for court to find the claimant
disabled). Where the court cannot discern the basis for the Commissioner’s decision, a
remand under sentence four is usually the proper course to allow the Commissioner to explain
the basis for the decision or for additional investigation. See Radford v. Comm’r, 734 F.3d
288, 295 (4th Cir. 2013) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744
(1985); see also Smith v. Heckler, 782 F.2d 1176, 1181–82 (4th Cir. 1986) (remanding case
where decision of ALJ contained “a gap in its reasoning” because ALJ did not say he was

7

discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984)
(remanding case where neither the ALJ nor the Appeals Council indicated the weight given
to relevant evidence). On remand under sentence four, the ALJ should review the case on a
complete record, including any new material evidence. See Smith, 782 F.2d at 1182 (“The
[Commissioner] and the claimant may produce further evidence on remand.”). After a remand
under sentence four, the court enters a final and immediately appealable judgment and then
loses jurisdiction. Sargent, 941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102
(1991)).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be
taken before the Commissioner of Social Security, but only upon
a showing that there is new evidence which is material and that
there is good cause for the failure to incorporate such evidence
into the record in a prior proceeding . . . .
42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis
of new evidence only if four prerequisites are met: (1) the evidence is relevant to the
determination of disability at the time the application was first filed; (2) the evidence is
material to the extent that the Commissioner’s decision might reasonably have been different
had the new evidence been before him; (3) there is good cause for the claimant’s failure to
submit the evidence when the claim was before the Commissioner; and (4) the claimant made
at least a general showing of the nature of the new evidence to the reviewing court. Borders
v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v.
Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir.

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1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by amendment to
statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec’y, Dep’t of Health & Human
Servs., 925 F.2d 769, 774 (4th Cir. 1991).4 With remand under sentence six, the parties must
return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98.
The reviewing court retains jurisdiction pending remand and does not enter a final judgment
until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir.
1995) (unpublished table decision) (holding that an order remanding a claim for Social
Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for
benefits, who are not of retirement age, who properly apply, and who are under a disability.
42 U.S.C. § 423(a). “Disability” is defined as:
the inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than
12 consecutive months.

4

Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in
Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth
Circuit have continued to cite the requirements outlined in Borders when evaluating a claim
for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL
5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL
3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm’r of Soc. Sec., No. 2:08-cv-93,
2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec’y of Health & Human Servs.,
807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme Court of the United
States has not suggested Borders’ construction of § 405(g) is incorrect. See Sullivan v.
Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent
Borders inquiry.
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Id. § 423(d)(1)(A).
I.

The Five Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations

have reduced the statutory definition of disability to a series of five sequential questions. See,
e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a “need for efficiency” in
considering disability claims). The ALJ must consider whether (1) the claimant is engaged
in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment
meets or equals an impairment included in the Administration’s Official Listings of
Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the
claimant from performing past relevant work; and (5) the impairment prevents the claimant
from having substantial gainful employment. 20 C.F.R. § 404.1520. Through the fourth step,
the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191
(4th Cir. 1983). The claimant must prove disability on or before the last day of her insured
status to receive disability benefits. Everett v. Sec’y of Health, Educ. & Welfare, 412 F.2d
842, 843 (4th Cir. 1969).

If the inquiry reaches step five, the burden shifts to the

Commissioner to produce evidence that other jobs exist in the national economy that the
claimant can perform, considering the claimant’s age, education, and work experience.
Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is
disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a); Hall v.
Harris, 658 F.2d 260, 264 (4th Cir. 1981).
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A.

Substantial Gainful Activity

“Substantial gainful activity” must be both substantial—involves doing significant
physical or mental activities, 20 C.F.R. § 404.1572(a)—and gainful—done for pay or profit,
whether or not a profit is realized, id. § 404.1572(b). If an individual has earnings from
employment or self-employment above a specific level set out in the regulations, he is
generally presumed to be able to engage in substantial gainful activity.

Id. §§

404.1574–.1575.
B.

Severe Impairment

An impairment is “severe” if it significantly limits an individual’s ability to perform basic
work activities. See id. § 404.1521. When determining whether a claimant’s physical and
mental impairments are sufficiently severe, the ALJ must consider the combined effect of all
of the claimant’s impairments. 42 U.S.C. § 423(d)(2)(B). The ALJ must evaluate a disability
claimant as a whole person and not in the abstract, having several hypothetical and isolated
illnesses. Walker v. Bowen, 889 F.2d 47, 49–50 (4th Cir. 1989) (stating that, when evaluating
the effect of a number of impairments on a disability claimant, “the [Commissioner] must
consider the combined effect of a claimant’s impairments and not fragmentize them”).
Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a
combination of impairments when determining whether an individual is disabled. Id. at 50
(“As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the
combined effects of the impairments.”). If the ALJ finds a combination of impairments to be
11

severe, “the combined impact of the impairments shall be considered throughout the disability
determination process.” 42 U.S.C. § 423(d)(2)(B).
C.

Meets or Equals an Impairment Listed in the Listings of Impairments

If a claimant’s impairment or combination of impairments meets or medically equals
the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration
requirement found at 20 C.F.R. § 404.1509, the ALJ will find the claimant disabled without
considering the claimant’s age, education, and work experience. 20 C.F.R. § 404.1520(d).
D.

Past Relevant Work

The assessment of a claimant’s ability to perform past relevant work “reflect[s] the
statute’s focus on the functional capacity retained by the claimant.” Pass v. Chater, 65 F.3d
1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant’s
residual functional capacity5 with the physical and mental demands of the kind of work he has
done in the past to determine whether the claimant has the residual functional capacity to do
his past work. 20 C.F.R. § 404.1560(b).
E.

Other Work

As previously stated, once the ALJ finds that a claimant cannot return to her prior work,
the burden of proof shifts to the Commissioner to establish that the claimant could perform
other work that exists in the national economy. See Hunter v. Sullivan, 993 F.2d 31, 35 (4th

5

Residual functional capacity is “the most [a claimant] can still do despite [his] limitations.”
20 C.F.R. § 404.1545(a).
12

Cir. 1992); 20 C.F.R. § 404.1520(f)–(g). To meet this burden, the Commissioner may
sometimes rely exclusively on the Medical-Vocational Guidelines (the “grids”). Exclusive
reliance on the “grids” is appropriate where the claimant suffers primarily from an exertional
impairment, without significant nonexertional factors.6 20 C.F.R. Pt. 404, Subpt. P, App. 2,
§ 200.00(e); see also Gory v. Schweiker, 712 F.2d 929, 930–31 (4th Cir. 1983) (stating that
exclusive reliance on the grids is appropriate in cases involving exertional limitations). When
a claimant suffers from both exertional and nonexertional limitations, the grids may serve only
as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a
vocational expert to establish the claimant’s ability to perform other work. 20 C.F.R. §
404.1569a; see Walker, 889 F.2d at 49–50 (“Because we have found that the grids cannot
be relied upon to show conclusively that claimant is not disabled, when the case is remanded
it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that
despite the combination of exertional and nonexertional impairments, the claimant retains the
ability to perform specific jobs which exist in the national economy.”). The purpose of using
a vocational expert is “to assist the ALJ in determining whether there is work available in the
national economy which this particular claimant can perform.” Walker, 889 F.2d at 50. For

6

An exertional limitation is one that affects the claimant’s ability to meet the strength
requirements of jobs. 20 C.F.R. § 404.1569a(a). A nonexertional limitation is one that affects
the ability to meet the demands of the job other than the strength demands. Id. Examples of
nonexertional limitations include but are not limited to difficulty functioning because of being
nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty
understanding or remembering detailed instructions; difficulty seeing or hearing.
§ 404.1569a(c)(1).
13

the vocational expert’s testimony to be relevant, “it must be based upon a consideration of all
other evidence in the record, . . . and it must be in response to proper hypothetical questions
which fairly set out all of claimant’s impairments.” Id. (citations omitted).
II.

Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783

F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue.
Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a
claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In
such circumstances, “the ALJ should scrupulously and conscientiously probe into, inquire of,
and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as
well as unfavorable facts and circumstances are elicited.” Id. (internal quotations and citations
omitted).
III.

Treating Physicians
If a treating physician’s opinion on the nature and severity of a claimant’s impairments

is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence” in the record, the ALJ must give it
controlling weight. 20 C.F.R. § 404.1527(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th
Cir. 2001). The ALJ may discount a treating physician’s opinion if it is unsupported or
inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant
controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to
14

the medical opinion based on the 1) length of the treatment relationship and the frequency of
examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion;
4) consistency of the opinion with the record a whole; 5) specialization of the physician; and
6) other factors which tend to support or contradict the opinion, 20 C.F.R. § 404.1527(c).
Similarly, where a treating physician has merely made conclusory statements, the ALJ may
afford the opinion such weight as is supported by clinical or laboratory findings and other
consistent evidence of a claimant’s impairments. See Craig, 76 F.3d at 590 (holding there
was sufficient evidence for the ALJ to reject the treating physician’s conclusory opinion where
the record contained contradictory evidence).
In any instance, a treating physician’s opinion is generally entitled to more weight than
a consulting physician’s opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir.
1983) (stating that treating physician’s opinion must be accorded great weight because “it
reflects an expert judgment based on a continuing observation of the patient’s condition for
a prolonged period of time”); 20 C.F.R. § 404.1527(c)(2). An ALJ determination coming
down on the side of a non-examining, non-treating physician’s opinion can stand only if the
medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker,
795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical
findings and other evidence that support a medical source’s statement that a claimant is
disabled. 20 C.F.R. § 404.1527(d). However, the ALJ is responsible for making the ultimate
determination about whether a claimant meets the statutory definition of disability. Id.

15

IV.

Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a

claimant’s medical sources do not give sufficient medical evidence about an impairment to
determine whether the claimant is disabled. 20 C.F.R. § 404.1517; see also Conley v.
Bowen, 781 F.2d 143, 146 (8th Cir. 1986).

The regulations are clear: a consultative

examination is not required when there is sufficient medical evidence to make a determination
on a claimant’s disability. 20 C.F.R. § 404.1517. Under the regulations, however, the ALJ
may determine that a consultative examination or other medical tests are necessary. Id.
V.

Pain
Congress has determined that a claimant will not be considered disabled unless he

furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing
the existence of a medical impairment that could reasonably be expected to produce the pain
or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). In evaluating claims of disabling pain, the
ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App’x 716, 723 (4th Cir.
2005) (unpublished opinion). First, “the ALJ must determine whether the claimant has
produced medical evidence of a ‘medically determinable impairment which could reasonably
be expected to produce . . . the actual pain, in the amount and degree, alleged by the
claimant.’” Id. (quoting Craig, 76 F.3d at 594). Second, “if, and only if, the ALJ finds that the
claimant has produced such evidence, the ALJ must then determine, as a matter of fact,

16

whether the claimant’s underlying impairment actually causes her alleged pain.” Id.
(emphasis in original) (citing Craig, 76 F.3d at 595).
Under the “pain rule” applicable within the United States Court of Appeals for the Fourth
Circuit, it is well established that “subjective complaints of pain and physical discomfort could
give rise to a finding of total disability, even when those complaints [a]re not supported fully
by objective observable signs.” Coffman v. Bowen, 829 F.2d 514, 518 (4th Cir. 1987) (citing
Hicks v. Heckler, 756 F.2d 1022, 1023 (4th Cir. 1985)). The ALJ must consider all of a
claimant’s statements about his symptoms, including pain, and determine the extent to which
the symptoms can reasonably be accepted as consistent with the objective medical evidence.
20 C.F.R. § 404.1528. Indeed, the Fourth Circuit has rejected a rule which would require the
claimant to demonstrate objective evidence of the pain itself, Jenkins v. Sullivan, 906 F.2d
107, 108 (4th Cir. 1990), and ordered the Commissioner to promulgate and distribute to all
administrative law judges within the circuit a policy stating Fourth Circuit law on the subject of
pain as a disabling condition, Hyatt v. Sullivan, 899 F.2d 329, 336–37 (4th Cir. 1990). The
Commissioner thereafter issued the following “Policy Interpretation Ruling”:
This Ruling supersedes, only in states within the Fourth
Circuit (North Carolina, South Carolina, Maryland, Virginia and
West Virginia), Social Security Ruling (SSR) 88-13, Titles II and
XVI: Evaluation of Pain and Other Symptoms:
...
FOURTH CIRCUIT STANDARD: Once an underlying
physical or [m]ental impairment that could reasonably be
expected to cause pain is shown by medically acceptable
objective evidence, such as clinical or laboratory diagnostic
techniques, the adjudicator must evaluate the disabling effects of
17

a disability claimant’s pain, even though its intensity or severity
is shown only by subjective evidence. If an underlying impairment
capable of causing pain is shown, subjective evidence of the
pain, its intensity or degree can, by itself, support a finding of
disability. Objective medical evidence of pain, its intensity or
degree (i.e., manifestations of the functional effects of pain such
as deteriorating nerve or muscle tissue, muscle spasm, or
sensory or motor disruption), if available, should be obtained and
considered. Because pain is not readily susceptible of objective
proof, however, the absence of objective medical evidence of the
intensity, severity, degree or functional effect of pain is not
determinative.
SSR 90-1p, 55 Fed. Reg. 31,898-02, at 31,899 (Aug. 6, 1990). SSR 90-1p has since been
superseded by SSR 96-7p, which is consistent with SSR 90-1p. See SSR 96-7p, 61 Fed.
Reg. 34,483-01 (July 2, 1996). SSR 96-7p provides, “If an individual’s statements about pain
or other symptoms are not substantiated by the objective medical evidence, the adjudicator
must consider all of the evidence in the case record, including any statements by the individual
and other persons concerning the individual’s symptoms.” Id. at 34,485; see also 20 C.F.R.
§ 404.1529(c)(1)–(c)(2) (outlining evaluation of pain).
VI.

Credibility
The ALJ must make a credibility determination based upon all the evidence in the

record. Where an ALJ decides not to credit a claimant’s testimony about pain, the ALJ must
articulate specific and adequate reasons for doing so, or the record must be obvious as to the
credibility finding. Ham mond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985). Although
credibility determinations are generally left to the ALJ’s discretion, such determinations should
not be sustained if they are based on improper criteria. Breeden, 493 F.2d at 1010 (“We
recognize that the administrative law judge has the unique advantage of having heard the
18

testimony firsthand, and ordinarily we may not disturb credibility findings that are based on a
witness’s demeanor. But administrative findings based on oral testimony are not sacrosanct,
and if it appears that credibility determinations are based on improper or irrational criteria
they cannot be sustained.”).
APPLICATION AND ANALYSIS
Consideration of the VA Disability Rating
Plaintiff alleges the ALJ erred because she cited to and applied McCartey v.
Massanari, 298 F.3d 1072 (9th Cir. 2002), in her decision as the basis for determining the
deference owed to the VA decision, rather than apply the law of this circuit which is articulated
in Bird v. Comm’r, 699 F.3d 337 (4th Cir. 2012). [Doc. 12 at 3.] And, Plaintiff argues that even
if the ALJ was not required to specifically cite the Bird standard, the ALJ still did not comply
with it. [Doc. 14 at 6.] For the reasons stated herein, the Court agrees that the ALJ failed to
properly apply the law of this circuit in evaluating the VA rating decision in this matter.
The VA disability rating
In a letter dated May 23, 2012, the Department of Veterans Affairs issued a “proposed
VA Rating Decision” (“the VA decision”) to Plaintiff’s service department based on him being
found unfit for continued service. [R. 212] The VA proposed the following unfitting disabilities
were related to Plaintiff’s military service and were, thus, considered service related: anxiety
disorder (50%); degenerative arthritis of right (dominant) and left shoulder joints (10% each);
status post right wrist (dominant) ganglion cyst excision (10%); lumbar strain, thoracic spine
osteoarthritis and spondylosis (10%); and right and left hip osteoarthritis (10% each). [R.

19

213.] This letter was provided as an estimate for Plaintiff’s “transition planning purposes” and
did not constitute a final decision by the VA. [Id.]
An Informal Physical Evaluation Board (PEB) Proceedings form dated August 7,
2012, documenting initial findings, and noted that the PEB found Plaintiff physically unfit to
continue in service and recommended a rating of 80% with a recommendation of
reexamination in May 2013. [R. 210.] With respect to Plaintiff’s anxiety disorder (assessed
50% disability rating), the PEB form explained that Plaintiff’s psychiatrist attributes anxiety
symptoms to combat stressors encountered during Afghanistan and renders Plaintiff unable
to reasonably continue military service due to irritability, anxiety episodes, sleep difficulty,
avoidance symptoms, and recurrent recollections. [Id.] The PEB also noted that Plaintiff was
assessed 10% disability ratings, respectively, for each of the following impairments which they
found were service related: right and left shoulder osteoarthritis; right wrist ganglion resection
with limitation of movement and strength; thoracic spine osteoarthritis; right and lift hip
osteoarthritis; right and left knee osteoarthritis; and left foot bunionectomy with limitation of
movement. [R. 210–11.]
Approximately eight (8) months later, on April 29, 2013, a veteran’s affairs officer
issued letters to both the State Department of Revenue and the Department of Natural
Resources on behalf of Plaintiff indicating that he had been determined to be 100%
permanently disabled due to service-connected disabilities, effective December 25, 2012.
[R. 206.] On February 5, 2014, the Department of the Army issued an Army CRSC Decision
Letter with respect to Plaintiff’s December 31, 2013, application indicating that they had
reviewed his claim for Combat-Related Special Compensation (“CRSC”) and approved his
20

claim. [R. 207.] The letter explained that they found Plaintiff to be 50% disabled due to anxiety
disorder combat-related. [Id.]
Treatment notes dated February 18, 2014, from Plaintiff’s psychologist at the VA,
Norman D. Farley, Ph.D. (“Dr. Farley”), indicated a worsening in Plaintiff’s PTSD with an
increase in symptoms and decrease in functioning, including panic attacks and trouble
sleeping. [R. 573.] On or about February 25, 2015, Plaintiff’s PTSD disability rating was
increased from fifty (50%) percent to seventy (70%) percent, with sleep apnea syndrome rated
at fifty (50%) percent and valvular heart disease rated at thirty (30%) percent. [R. 716.]
Plaintiff’s service connected disability rating was again noted to be 100%. [Id.]

The

remaining physical limitations, previously considered, remained unchanged at ten (10%). [Id.]

The ALJ’s Consideration of the VA disability rating
During the RFC analysis, the ALJ explained her review of certain VA records. The ALJ
specifically stated
In addition to the claimant's testimony, I have carefully considered
the claimant's treatment history. Reviewing all of the objective
evidence of record, the claimant received medical treatment for
his impairments at agencies including the Veteran Affairs (VA)
Hospital of Charleston (Exhibits B1F - B3F, B5F, B8F, and
B10F). Additionally, I have reviewed the claimant's filings,
developmental history, consultative examinations, and other
opinion evidence of record (Exhibits B1A - B8A, B1E - B14E,
B4F, B6F - B7F, and B9F). However, this summary of the
claimant's treatment history will focus upon his established
severe impairment.
The objective medical evidence supports findings for severe
impairments related to the claimant's degenerative disc disease
(DDD), osteoarthritis of the knees and shoulder, anxiety
21

disorders, and obesity. Reviewing the medical evidence, the
claimant does have an extensive history of treatment with the VA
Hospital of Charleston, South Carolina (Exhibits BF - B2F, B5F,
and B8F). Prior to the end of 2012, the claimant has a treatment
history including a bunionectomy of his left foot, status-post
excision of a left ganglion cyst, hypertension, sinus allergies,
hernia, high cholesterol, and anxiety disorder (Exhibit B1F).
However, as previously discussed, the claimant was capable of
performing work above substantial gainful activity levels during
this same period, as will be discussed below.
While still serving with the United States Army (USA), the
claimant met a medical evaluation board and was evaluated as
being status post left foot bunionectomy, status post right wrist
ganglion cyst surgery, with diagnoses for chronic fatigue
syndrome, and multiple joint arthritis (Exhibit B1F/26 - 70).
Although the claimant was recommended for discharge, he
appears to have been allowed to serve throughout 2012 (Exhibit
B1F/29). More significantly, the claimant was diagnosed with
Post Traumatic Stress Disorder (PTSD) or an anxiety related
disorder (Exhibit B1F/35 - 38). However, it is worth noting that
while the claimant did deploy overseas, he admitted that he
"never witnessed the killing or death of another" and he never
"shot at anyone" (Exhibit B1F/35). Nevertheless, the claimant
reported symptoms including shortness of breath, anger, and a
dislike being among crowds (Exhibit B1F/35).
On March 12, 2013, the claimant presented to the VA Hospital
to establish care (Exhibit B2F/302–308). Although the claimant
reported some body aches that he thought were related to his
arthritis diagnosis, the claimant also reported that he was feeling
"generally well" (Exhibit B2F/302). According to his treatment
notes on March 27, 2013, the claimant's anxiety was being
treated with a high dose of medication (Exhibit B2F/301). On
April 17, 2013, the claimant appears to have been fitted for
orthotic insoles (Exhibit B1F/71). On May 23, 2013, the claimant
reported that he enjoyed deer hunting (Exhibit B2F/292). On June
11, 2013, the claimant reported that he was doing "pretty well,"
he had been consistent with his psychiatric medications, and he
reported "greatly benefitting" from psychotherapy (Exhibit
B2F/288–289). Subsequently, the claimant reported that he was
planning to learn to fly fish (Exhibit B2F/284). On October 15,
2013, the claimant continued to report good benefit from his
22

medications except he was now experiencing some difficulty
getting going in the morning (Exhibit B2F/269).
On September 12, 2013, the claimant presented for a diagnostic
study of his left shoulder, which was unremarkable (Exhibit
B2F/13, 194). However, a Magnetic Resonance Imaging (MRI)
of the claimant's left shoulder did indicate a partial undersurface
tear, with a partial thickness tear, and anterior labrum
irregularities consistent with moderate degenerative changes
(Exhibit B2F/191 - 194). X-rays of the claimant's right knee and
right shoulder only indicated mild findings (Exhibit B2F/190 191). Subsequent testing of the claimant's knees indicated that
the claimant's knees were intact with only mild defect findings
(Exhibit B2F186 - 187). Similarly, the claimant was assessed
with arthralgia related to a left shoulder partial tear on November
5, 2013 (Exhibit B2F/12, 259). On this same date, the claimant
was examined normally in a physical examination and the
claimant was assessed as being able to perform "all functions"
(Exhibit B2F/91-92). However, on February 13, 2014, the
claimant reported he now required a cane to ambulate (Exhibit
B2F/177 - 178). By March 12, 2014, the claimant's shoulder pain
symptoms were being treated by narcotic pain medications
(Exhibit B2F/145 - 148). ). On July 11, 2014, the claimant
presented for a right knee MRI, which indicated mostly normal
findings except for minimal edema (Exhibit B2F/4 - 7). X-rays of
the claimant's right knee were also unremarkable (Exhibit B2F/8
- 9).
On March 20, 2014, the claimant was treated for chronic pain in
his shoulders related to his history of rotator cuff and left shoulder
problems (Exhibit B2F/232). Subsequently, the claimant
presented regularly for treatment of his anxiety related symptoms,
but he also reported that he was attending church, albeit
inconsistently (Exhibit B2F/221 - 228). During multiple follow-up
appointments, the claimant reported that he was doing "pretty
good" and he was benefitting from his psychiatric medications
(Exhibit B2F/133 - 141and202 - 214). However, the claimant
was unsatisfied with the care he was receiving for his shoulder
(Exhibit B2F/139). On June 25, 2014, the claimant did report
some worsening anxiety symptoms, but these seem to be related
to arguments with his fiancee's daughter (Exhibit B2F/120–131).
Previously, the claimant reported some difficulty with reliability
and productivity as well as problems establishing relationships
23

(Exhibit B2F/72). However, the claimant reported a long-term
relationship with his fiancee and he was reluctant to talk
specifically about his symptoms (Exhibit B2F/73 - 80).
Between September 25, 2014, and March 5, 2015, the claimant
consulted with the VA Hospital regarding oral surgery including
a crown and a bridge for his teeth (Exhibit B5F/5 - 23). Prior to
this, the claimant continued to report good benefit from his
anxiety medications on December 16, 2014 (Exhibit B5F/14).
During a mental health examination on May 8, 2015, the claimant
reported that "things are steady, I'm doing well" (Exhibit B8F/15).
On August 10, 2015, the claimant failed to show for a mental
health appointment (Exhibit B8F/12). However, the claimant
returned for treatment on August 13, 2015 (Exhibit B8F/9).
During his examination, the claimant reported that his mood was
"stable and positive most of the time" (Exhibit B8F/9). Although
the claimant reported some anxiety related symptoms were
present, he also reported them not "interfering with function
significantly until he tries to go to sleep" (Exhibit B8F /9).
[R. 24–25.]
After reviewing the evidence from Plaintiff’s VA records, the ALJ found as follows:
I am mindful that the claimant has been found disabled by the
Veteran's Administration (VA) and is currently receiving disability
payments from that agency. (Exhibits B1D - B3D) That finding
corresponded to the claimant's testimony that he currently
receives VA benefits. Reviewing his filings, the claimant appears
to have been granted a 100% rating by the Department of
Veterans Affairs (Exhibits B2D - B3D). Specifically, the claimant
was granted a Veteran Affairs service connection evaluation for
anxiety disorder at 50% effective December 25, 2012 (Exhibit
6D/1). Similarly, the claimant was granted two 10% service
connection evaluations for degenerative arthritis of his bilateral
shoulder joints, 10% for his status post right wrist ganglion cyst
excision, 10% for his lumbar strain and thoracic spine arthritis,
and two 10% ratings for his bilateral hip osteoarthritis (Exhibit
B2D/8). I have carefully considered all of these ratings as well as
medical evidence supporting them. However, the Social Security
Administration makes determinations of disability according to
Social Security law, therefore a determination of disability by
another agency is not binding on this Administration. (20 CFR
24

404.1504 [20 CFR 416.904], see also SSR 96-5p on issues
reserved to the Commissioner).
Under McCartey v. Massanari, 298 F. 3d 1072 (9th Cir. 2002),
the court concluded that an Administrative Law Judge must
ordinarily give great weight to a Veterans Administration
determination of disability. The court ruled that the Veterans
Administration criteria for evaluating disability are very specific
and translate easily into the Social Security Administration's
disability framework. However, because the Veterans
Administration and Social Security Administration criteria for
determining disability are not completely synonymous, the
Administrative Law Judge may give less weight to a Veterans
Administration disability rating if he or she gives persuasive,
specific, valid reasons for doing so that are supported by the
record. With this in mind, after weighing and measuring the
extensive medical evidence from the VA, I find their
determination does substantiate the awarding of disability
benefits pursuant to their regulations. However, as discussed in
more detail below, while I do agree with the VA determination
that medically determinable impairments limit the claimant's
functioning, I do not find that they fully establish disability under
SSA criteria.
[R. 27–28.]
Discussion
As an initial matter, the Court notes that the ALJ found as follows: “after weighing and
measuring the extensive medical evidence from the VA, I find that their determination does
not substantiate the awarding of disability benefits pursuant to their regulations.” 7 [R. 28
(emphasis added).] The ALJ, however, did not explain her basis for finding that the VA

7

It appears the ALJ articulated an out-right dismissal of the VA Decision based on her
finding that the VA’s decision did not confirm to their own regulations. It is unclear to the Court
what authority the ALJ has to make such a review of the VA Decision. The ALJ’s duty here
was to weigh the VA decision under the SSA’s regulations. In the event this was a
misstatement, this should be clarified on remand.
25

regulations did not support their finding of disability. And, while the ALJ agreed with the VA’s
determination “that medically determinable impairments limit the claimant’s functioning, [she
did] not find that they fully established disability under SSA criteria.” [Id.] As explained herein,
the ALJ’s decision fails to bridge the gap between the evidence and her ultimate findings
sufficiently for this Court to make a substantial evidence review.
While a VA disability determination is not binding on the Commissioner, as a starting
point the Administration must give substantial weight to a VA disability rating. See Report and
Recommendation, Robinson v. Colvin, C/A No. 6:15-1786-TMC-KFM, 2016 WL 3617971,
at *9–11 (D.S.C. June 11, 2016), adopted by 2016 WL 3595564 (July 5, 2016). And, the ALJ
should sufficiently explain the consideration given to a VA disability decision. Id.; Bird v.
Comm’r, 699 F.3d 337, 343–44 (4th Cir. Nov. 9, 2012) (“SSA must give substantial weight
to a VA disability rating”); see also SSR 06–03P, 2006 WL 2329939, at * 7(SSA) (ALJ
“should explain the consideration given to [the VA disability determination] in notice of
decision ...”). Under Bird, the Commissioner may give less weight to a VA disability rating
when the record before the ALJ “clearly demonstrates” that such a deviation from a finding of
substantial weight is appropriate. See Bird, 699 F.3d at 344; see also Report and
Recommendation, Robinson v. Colvin, C/A No. 6:15-1786-TMC-KFM, 2016 WL 3617971,
at *9–11 (D.S.C. June 11, 2016)(where the ALJ did not discuss in any detail why or how he
assigned weight to the VA rating decision, remanded for the ALJ to follow the method
prescribed in Bird), adopted by 2016 WL 3595564 (July 5, 2016); Report and
Recommendation, Gannon v. Colvin, C/A No. 9:15-3250-RMG-BM, 2016 WL 5339698, at

26

*6–7 (D.S.C. Aug. 22, 2016) (the ALJ’s minimal discussion of the VA rating was not sufficient
to clearly demonstrate that a deviation from a finding of substantial weight was appropriate,
and remanded for a more proper weighing pursuant to the methodology outlined in Bird),
adopted by 2016 WL 5338504 (Sept. 21, 2016); Wood v. Colvin, C/A No. 9:12-3570-MGL,
2014 WL 607707, at *4 (D.S.C. Feb. 18, 2014) (remanding the case so the ALJ could
properly discuss the VA disability rating and whether deviation was appropriate under the
standard in Bird); Cobbs v. Colvin, C/A No. 1:12-3472-JMC-SVH, 2014 WL 468928, at *8–9
(D.S.C. Feb. 4, 2014) (remanding for evaluation of the VA ratings in accordance with the Bird
standard).
Here, the ALJ never expressly assigned a weight to the VA disability rating or stated
that she was assigning substantial weight as a starting point in her evaluation of the VA rating
decision. See McClora v. Colvin, Civ. A. No. 5:14–cv–441–DCN, 2015 WL 3505535, at *16
(D.S.C. June 3, 2015) (finding remand appropriate because the ALJ’s decision “does not
indicate that ... [the ALJ] considered ‘substantial weight’ to be the starting point for weight to
give to VA ratings.”) To the contrary, the ALJ incorrectly explained that an ALJ must ordinarily
give “great weight” to a VA disability determination, but never indicated that she was even
beginning her evaluation by assigning the decision great weight. [See R. 28.] Curiously, as
stated previously, the ALJ indicated that she found the VA determination did not substantiate
an award of benefits “pursuant to their regulations.” [Id.] Clearly, regardless of the explanation
propounded by the Commissioner, the ALJ’s failure to assign weight to the VA decision, and
her failure to conduct an evaluation of the VA decision starting with an acknowledgment of her

27

duty to assign “substantial weight,” leaves the Court unable to adequately review the decision
or find that it is supported by substantial evidence.
Upon further review of the ALJ’s decision, the Court notes that the ALJ seemed to
merely disregard the VA ratings based on her finding that “the Social Security Administration
makes determinations of disability according to Social Security law, therefore a determination
of disability by another agency is not binding on this Administration.” [R. 28.] While it is true
that the VA’s disability procedures are different than the Administration’s procedures, that is
not itself a basis on which to disregard the VA’s findings. See Report and Recommendation,
Gannon v. Colvin, C/A No. 9:15-3250-RMG-BM, 2016 WL 5339698, at *6 (D.S.C. Aug. 22,
2016)(citing Bird), adopted by 2016 WL 5338504 (Sept. 21, 2016).
And, while the ALJ gave a cursory summary of Plaintiff’s medical history with the VA,
highlighting notes supportive of her decision, she appears to have dismissed evidence of
Plaintiff’s worsening PTSD symptoms by explaining them away as being related to Plaintiff’s
arguments with his fiancee’s daughter. [R. 25.] A review of the medical records from the VA,
however, document findings by Plaintiff’s treatment providers at the VA of worsening
symptoms and, as a result, an increase in his disability rating for PTSD from 50% to 70%.
[See R. 716.] The ALJ never acknowledged an increase in Plaintiff’s PTSD rating by the VA
based on medical findings of the VA physicians. The ALJ also appeared to question the
veracity of Plaintiff’s PTSD diagnosis by finding it “worth noting that while claimant did deploy
overseas, he admitted that he ‘never witnessed the killing or death of another’ and he never
‘shot at anyone’.” [R. 24.] The Court finds these conclusions by the ALJ to be not only
disturbing, but finds them to be an inappropriate attempt to make medical conclusions
28

particularly in light of findings by VA physicians supporting this diagnosis. See Gallman v.
Colvin, No. 5:12–cv–2979, 2014 WL 658002, at *8 (D.S.C. Feb.19, 2014) (finding that ALJ
was not “free to simply disregard uncontradicted expert opinions in favor of his own opinion
on a subject he is not qualified to render,” and noting that the ALJ “offered little explanation”
for his conclusions as to the expert's opinion and did not discuss any medical evidence that
conflicted with the opinion); see also Baker v. Colvin, Civ. A. No. 14-4249-PJG, 2016 WL
527054 at *7 (D.S.C. Feb. 9, 2016) (holding that the ALJ “cannot arbitrarily substitute his own
judgment for competent medical opinion,” nor can he “set his own expertise against that of a
physician who submitted an opinion to or testified before him”) (internal quotations and citation
omitted)).
After reviewing the evidence, the ALJ found that Plaintiff’s “limitations are very close
to where they were at the point of the [ALJ’s] prior decision” and that “not much has changed
concerning the claimant’s treatment or allegations.” [R. 28.] The ALJ, however, failed to
explain her consideration of either Plaintiff’s increased PTSD rating (from 50% to 70%), or
his additional diagnoses of sleep apnea syndromes and valvular heart disease which were
assigned disability ratings of 50% and 30% respectively by the VA after its initial disability
findings and after the prior decision of the Commissioner. [See R. 716.] Additionally, the
ALJ acknowledged Plaintiff’s obesity, but never explained the effect of his obesity on his
physical limitations in the RFC analysis, particularly in light of treatment notes from the VA
indicating that Plaintiff was morbidly obese, suffered probable weight related hypogonadism
and musculoskeletal issues, and should be evaluated for consideration for bariatric surgery.

29

[R. 780–82.] Thus, the ALJ’s finding that “not much changed” concerning Plaintiff’s treatment
or limitations does not appear to be consistent with the record evidence.
Based on the above, the Court finds that the ALJ’s failure to initially assign substantial
weight to the Plaintiff’s VA disability rating and explain her deviation from that assignment, as
well as her cursory review and discussion of the medical evidence, fails to comply with the
Bird standard requiring that the ALJ must “clearly demonstrate” that a deviation from
substantial weight is appropriate. McClora, 699 F.3d at 343 (quoting Bird). Accordingly, the
undersigned recommends that this case be remanded with instructions for the ALJ to follow
the specific method for weighing VA disability ratings prescribed in Bird. See Lawson v.
Colvin, C.A. No. 0:14–CV–4662–DCN–PJG, 2015 WL 7769234, at *4 (D.S.C. Nov. 17,
2015) (recommending remand for assessment of VA disability rating in accordance with the
Bird standard), adopted by

2015 WL 7776897; Sims v. Colvin, C.A. No.

2:14–CV–03005–TLW, 2015 WL 5474760, at *6 (D.S.C. Sept. 17, 2015) (remanding for
evaluation of VA ratings in accordance with the Bird standard); Cobbs v. Colvin, C.A. No.
1:12–CV–03472–JMC, 2014 WL 468928, at *8 (D.S.C. Feb. 4, 2014) (same).
Remaining Allegations of Error
Upon remand, the ALJ is to take into consideration Plaintiff’s remaining allegations of
error. Additionally, the ALJ should (1) reconsider her evaluation of Plaintiff’s credibility in
accordance with SSR 96-7p; (2) reassess Plaintiff’s RFC in light of the combined effect of all
his legitimate impairments and the potential factors for precipitating and aggravating
symptoms; and (3) reassess the hypothetical questions presented to a VE in light of the RFC,

30

her finding that Plaintiff has moderate difficulties related to concentration, persistence or pace,
and Plaintiff’s claim of being off task 20%-30% of the time. See Mascio v. Colvin, 780 F.3d
632 (4th Cir. 2015) (explaining that the ability to perform simple tasks differs from the ability
to stay on task which relates to concentration, persistence or pace).
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends the Commissioner’s
decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and the case is
REMANDED to the Commissioner for further administrative action consistent with this Report
and Recommendation.
IT IS SO RECOMMENDED.

April 26, 2017
Greenville, South Carolina

s/Jacquelyn D. Austin
United States Magistrate Judge

31